12/08/97 COMMONWEALTH PENNSYLVA v. JOSEPH BRADLEY

Appeal from the Judgment of Sentence of the Court of Common Pleas of Clarion County, Criminal Division at No. 425 of 1993.

Appeal from the Judgment of Sentence of the Court of Common Pleas of Clarion County, Criminal Division at No. 550 of 1993. Before GREINER, J.

Before: Popovich, Saylor, and Olszewski, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

Filed December 8, 1997

OPINION BY POPOVICH, J.:

This case involves appellant Joseph Bradley Rathfon's convictions in two separate cases. In both cases, Rathfon filed a motion to suppress evidence seized by police from his home. The trial court denied both motions. On appeal, he contends that this was error. We affirm.

On December 8, 1992, Officer Lou Weiers of the Bureau of Alcohol, Tobacco and Firearms, met with Yvonne Summerville, appellant's paramour. During this meeting, Summerville informed the officer that she had observed drugs and drug paraphernalia in Rathfon's home. Based on the information provided, the officer obtained a search warrant for the home. On December 23, 1992, the search warrant was executed. The search revealed 318.2 grams of marijuana, cocaine residue, drug paraphernalia and tools used for growing and processing marijuana. Consequently, an arrest warrant was issued for Rathfon.

Before the arrest warrant was executed by police, Summerville informed Pennsylvania State Police Trooper Dennis Martinez that Rathfon was continuing to grow marijuana at his home. On June 14, 1993, Trooper Martinez, who was accompanied by other state troopers, traveled to Rathfon's home to execute the arrest warrant. Trooper Martinez detained Rathfon while another officer walked the perimeter of the residence for safety reasons. The second officer discovered six potted marijuana plants along a fence in Rathfon's yard. Subsequently, following Rathfon's arrest, Trooper Martinez applied for, and was granted, a second search warrant for Rathfon's residence. The second search of Rathfon's home revealed thirty-one marijuana plants, various drug paraphernalia and several marijuana growing tools.

Based upon the December 23, 1992, search, Rathfon was charged at indictment number 425 CR 93 with unlawful manufacturing of marijuana, possession with intent to deliver marijuana, possession with intent to use drug paraphernalia, possession of cocaine and two counts of possession of marijuana. Rathfon filed an Omnibus Pre-Trial Motion alleging that Summerville had been coerced into acting as a government agent and then entered his residence without permission when she gathered the information that provided the basis for the search warrant executed on December 23, 1992. Following a hearing, the motion was denied.

Based upon the June 14, 1993, search, Rathfon was charged at information number 550 CR 1993 with possession with the intent to deliver marijuana, possession with the intent to manufacture marijuana, possession of marijuana and possession of drug para -- phernalia. Rathfon also filed an Omnibus Pre-Trial Motion at 550 CR 1993. Following a hearing, the motion was denied.

On May 6, 1994, Rathfon was found guilty of all charges at 425 CR 1993, with the exception of the charges for possession of cocaine and possession with intent to deliver marijuana. On May 19, 1994, Rathfon was found guilty of all charges at 550 CR 1993. He was then sentenced by the lower court.

Rathfon filed two notices of appeal to this Court. We dismissed both appeals because he failed to file appellate briefs. Subsequently, Rathfon filed a petition for Post-Conviction Relief regarding both judgments of sentence. In his petition, Rathfon alleged that a new trial was warranted and that he should be permitted to file a direct appeal nunc pro tunc. By order dated November 7, 1996, the PCRA court granted Rathfon's petition to file an appeal nunc pro tunc. However, the PCRA court failed to address Rathfon's issues directed at securing a new trial. On December 4, 1996, Rathfon filed notices of appeal in both 425 CR 1993 and 550 CR 1993. These notices were defective because Rathfon appealed the order entered on November 7, 1996, instead of the judgments of sentence entered on June 8, 1994. Rathfon corrected this oversight on December 16 and 17, 1996, by filing amended notices of appeal. *fn1

On appeal, Rathfon's sole argument is that all of the evidence seized at his residence on December 23, 1992, and June 14, 1993, should have been suppressed because Summerville, who acted as a government agent, illegally entered his home to gather the information upon which the searches of his residence were based. In bringing this claim, Rathfon challenges the propriety of the trial court's February 22, 1994, order, which denied his suppression motion in 550 CR 1993, and the May 4, 1994, order, which denied his suppression motion in 425 CR 1993. In reviewing appellant's claim, we will determine whether the record supports the trial court's factual findings and whether the trial court's legal Conclusions drawn from the facts are free of error. Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992).

The Fourth Amendment of the United States Constitution protects people from unreasonable governmental intrusions into their legitimate expectations of privacy. *fn2 Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619 (1994). "The protection of the Fourth Amendment does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1118 (1993). "An expectation of privacy is present when an individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that...subjective expectation is one that society is prepared to recognize as reasonable." Commonwealth v. Oglialoro, 525 Pa. 250, 579 A.2d 1288, 1290 (1990) (quotation omitted). The determination of whether an individual's subjective expectation of ...

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